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Himachal Pradesh High Court · body

2011 DIGILAW 287 (HP)

Laiq Ram v. State of H. P.

2011-01-06

DEEPAK GUPTA

body2011
JUDGMENT Deepak Gupta, J :- I have had the benefit of going through the detailed judgment passed by my respected brother Hon'ble Mr. Justice R.B. Misra. With utmost respect, I am unable persuade myself & agree with the conclusion drawn by him that it would not be open to the State Government, while exercising powers under Section 10(1) of the Industrial Disputes Act to decide the question whether the claim filed by the workman is stale or not. A Division Bench of this Court referred the following question for adjudication by a larger Bench: "Whether the State Government while exercising powers under Section 10(1) of the Industrial Disputes Act, is precluded from deciding the question as to whether the claim made by a workman is stale or not?" It is not necessary to give all the facts or to refer to the various provisions of the Industrial Disputes Act (Hereinafter referred to as the Act) or eve n to refer to many of the authorities cited, since they have been noticed in the main judgment. In my view the only question involved relates to the interpretation of the following words forming part of Section 10 of the Act: "Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing- refer the......" 2 The reference can be made to a Board, Court of inquiry, Labour Court etc. depending upon the nature of the dispute. The short question involved is whether the State Government can hold that since the workman has not agitated the dispute for a long time, the same has become stale and therefore no longer exists. Before dealing with this question further, I feel that it would be apposite to clarify that here we are dealing only with the question relating to the powers of the Government. Once, a reference is made, there can be no manner of doubt that the Labour Court or the Industrial Tribunal cannot reject the claim on the ground that it is stale. The Tribunal or Labour Court gets jurisdiction to decide an industrial dispute only when a reference is made to it by the appropriate Government under Section 10 of the Act. The Tribunal or the Labour Court cannot invalidate the reference on the ground of delay. The Tribunal or Labour Court gets jurisdiction to decide an industrial dispute only when a reference is made to it by the appropriate Government under Section 10 of the Act. The Tribunal or the Labour Court cannot invalidate the reference on the ground of delay. If the employer makes a grievance that the workman has made a stale claim then the employer should challenge an order of reference by way of writ petition and here he can contend that since the claim is stale and highly belated no industrial dispute is existed or apprehended. The Labour Court may mould the relief but it cannot invalidate or strike down the reference. Reference in this behalf may be made to the judgment of the Apex Court in Director, Food and Supplies, Punjab and another vs. Gurmit Singh, AIR 2007 SC 3012 , wherein the Apex Court held as follows: "..... The Tribunal or the Labour Court under Section 10 gets jurisdiction to decide an industrial dispute only upon a reference by the appropriate government. The Tribunal or the Labour Court cannot invalidate the reference on the ground of delay. If the employer makes a grievance that the workman has made a stale claim then an employer can challenge the reference by way of a writ petition and contend that since the claim is belated there was no industrial dispute. The Tribunal or the Labour Court cannot strike down the reference on this ground. As observed in Sapan Kumar Pandit v. U.P. State Electricity Board and Ors. ( 2001 (6) SCC 222 ) there are cases in which lapse of time had caused fading or even eclipse of the-dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. The long delay for making the adjudication could be considered by the Adjudicating Authority while moulding the reliefs. That is a different matter altogether." 3 This judgment itself indicates that an industrial dispute can cease to exist when the workman has made a stale claim and an employer has a right to challenge the reference made by filing a writ petition. That is a different matter altogether." 3 This judgment itself indicates that an industrial dispute can cease to exist when the workman has made a stale claim and an employer has a right to challenge the reference made by filing a writ petition. This also postulates that the Government is not precluded from considering the fact whether an industrial dispute exists or not. A three Judge Bench of the Apex Court in Bombay Union of Journalists and others vs. The State of Bombay and another, AIR 1964 SC 1617 dealt with the powers of the State Government under Section 10 of the Act and held as follows: "....when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its powers to make a reference should be exercised under S.10 (1) read with S. 12 (5) or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Govt. may refuse to make a reference."(emphasis supplied) 4 Thereafter, in M/s. Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and others, 1970 (1) SCC 225 , the Apex Court specifically dealt with the phrase "at any time" occurring in Section 10 of the Act. The Apex Court held as follows: "8. .....As already stated, the expression "at any time" in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. The Apex Court held as follows: "8. .....As already stated, the expression "at any time" in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence." 5. In Telco Convoy Drivers Mazdoor Sangh and another v. State of Bihar and others, AIR 1989 SC 1565 , the apex Court clearly held that the appropriate Government exercises administrative powers and not judicial or quasi judicial powers while acting under Section 10 of the Act. Therefore, the Government cannot adjudicate upon the dispute but clarified that the Government had the right to form an opinion whether an industrial dispute "exists or is apprehended". 6 The State relies upon the judgment delivered in the Nedungadi Bank Ltd. vs. K.P. Madhavankutty and others, AIR 2000 SC 839 , wherein the Apex court held that though Section 10 of the Industrial Disputes Act does not prescribe any limit in making a reference, this does not mean that such power can be exercised at any time The Apex Court held as follows: "6. Law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent." (emphasis supplied) 7. It would be pertinent to mention that in the aforesaid case the employer bank had challenged the order of reference itself. The Apex Court held that the reference order could be challenged in writ proceedings and since the claim had been made by the workman after 7 years of his dismissal the claim was held to be stale and the Apex Court went on to hold that therefore the dispute did not exist any longer. In Sapan Kumar Pandit v. UP State Electricity Board & others, (2001) 6 SCC 222 , which has been relied upon by the learned counsel for the workmen, the services of the workmen were terminated on 17.7.1975 and on 29.3.1993 the State Government referred the dispute for adjudication to the Labour Court. The employer assailed the reference order on the ground of delay. The apex Court held that it was not a case where the workmen had woken up from deep slumber at the end of fifteen years. Along with the workman, 10 other persons were also retrenched and their grievances were espoused by the union. The employer had given an assurance to the workmen that in case the claim of he said 10 workmen is upheld by the labour Court, the same benefit would be given to the workmen. The Industrial dispute filed was partly allowed in the year 1988. The employer had given an assurance to the workmen that in case the claim of he said 10 workmen is upheld by the labour Court, the same benefit would be given to the workmen. The Industrial dispute filed was partly allowed in the year 1988. Thereafter the workmen filed a writ petition which was allowed in the year 1988 and the ten workmen were permitted to be reinstated. The SLP filed by the U.P. State Electricity Board was dismissed in the year 1989. The workman had claimed that the same benefit be accorded to him also. He along with his application for making a reference for initiating conciliation proceedings had also filed an application for condoning the delay which was allowed by the Labour Commissioner and thereafter the State Government made a reference. It was in this context that the apex Court held that the industrial dispute was in existence. In para 9, the apex Court held as follows:- “9 Hence the real test is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Government's power to make a reference would have extinguished. On the other hand, if the answer is in positive terms, the Government could have exercised the power whatever be the range of the period which elapsed since the inception of the dispute. That apart, a decision of the Government in this regard cannot be listed (sic) on the possibility of what another party would think, whether any dispute existed or not. The section indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority which can form such an opinion is the Government. If the Government decides to make the reference, there is a presumption that in the opinion of the Government, there existed such a dispute.” 8. Thereafter, the Apex Court in para 15 went on to hold as follows: "15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under S.4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay....." Both the aforesaid judgments of the Apex Court were considered by a Division Bench of this Court in Municipal Council Paonta Sahib vs. State of H.P. and others, 2002 (2) Cur.L.J. (H.P.) 242, wherein it was held as follows: "19. In the present case, the lapse of time had caused fading of the dispute. It had not been kept alive by the respondent workman and hence, industrial dispute could be said to have existed or apprehended. The action of making reference by the appropriate Government, therefore, cannot be said to be legal and valid and reference deserves to be quashed. The petition is accordingly allowed. Reference made by the appropriate government is hereby quashed. In the facts and circumstances of the case, there shall be no order as to costs." 9 In Reserve Bank of India vs. Gopinath Sharma and another, (2006) 6 SCC 221 , the Apex Court held that where the workman was discharged in July, 1976 and the Central Government made the reference on 25.1.1989 the dispute could not be said to be in existence and had become stale. The Apex Court held as follows: "21.ln our opinion, a dispute which is stale could not be a subject-matter of reference." 10. In Karan Singh vs. Executive Engineer Haryana State Marketing Board, 2007 (11) Scale 577, this question was again considered by the Apex Court and the Apex Court after considering the judgment in Sapan Kumar Pandit's case held as follows: "11. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. In Karan Singh vs. Executive Engineer Haryana State Marketing Board, 2007 (11) Scale 577, this question was again considered by the Apex Court and the Apex Court after considering the judgment in Sapan Kumar Pandit's case held as follows: "11. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case." 11 In State of Karnataka and another vs. Ravi Kumar, (2009) 13 SCC 746 , the Apex Court was dealing with a case where the workman did not challenge the order of his termination for 14 years. Then he filed a writ petition seeking a declaration that his termination was violative of Section 25-F of the Industrial Disputes Act. The High Court dismissed the writ petition but gave liberty to the workman to make a representation to the State Government. Thereafter, the workman represented to the State Government which made a reference to the Labour Court. The workman filed a claim before the Labour Court. In these circumstances, the Apex Court held as follows: "5. This Court has repeatedly held that stale claims should not be referred - vide Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. 2000(2) SCC 455 and Assistant Executive Engineer, Karnataka v. Shivalinga 2002 (10) SCC 167. We may also refer to the decision in Regional Provident Fund Commissioner v. K.T. Rolling Mills, 1995 (1) SCC 181 wherein this Court observed that when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness. 6. In this case the respondent did not choose to challenge the termination for 14 years. Merely because some other daily wagers had got some relief, he belatedly approached the High Court in 1998. The writ petition was dismissed with an observation that the respondent was at liberty to make an application seeking reference. The contention of the respondent that reference was made on the direction of the High Court is not therefore correct. As the reference was stale, it ought to have been rejected on that ground alone. It is not possible to expect the Asstt. The contention of the respondent that reference was made on the direction of the High Court is not therefore correct. As the reference was stale, it ought to have been rejected on that ground alone. It is not possible to expect the Asstt. Executive to prove after 14 years that the daily wager did not work or that he did not work for 240 days in a year or that the daily wager voluntarily left the work. Further when the State Government was not a party before the Labour Court, the respondent could not implead the State Government as a party in the writ petition challenging the award, nor can the High Court grant any relief against the State Government." (emphasis supplied) 12 This question has been again considered by the Apex Court in titled as Kuldeep Singh vs. G.M. Instrument Design Development and Facilities Centre and another, (2010) (13) Scale 142. In this case the services of the employee were terminated in the year 1992. Thereafter, the employee kept making representations to the concerned Minister, the Chief Secretary and various officers of the employer. After considering the entire law on the subject, the Apex Court referring to Nedungadi's case, held as follows: “17. Though this decision lays down that law does not prescribe any time limit for appropriate Government to exercise its power under Section 10 of the Act, the Court has concluded that the said power is to be exercised reasonably and in a rationale manner. In that case, the Central Government exercised its power after a lapse of about seven years of the order dismissing the workman from service. A perusal of the said decision shows that the workman has not furnished adequate reasons/materials for such a long delay and the only ground advanced by him was that two other similarly placed employees dismissed from service were reinstated." 13. Thereafter, the Apex Court on the facts of the case before it held that in the case before it the workman had been agitating against his termination one way or the other with all the authorities concerned. He was fighting for his cause before the Management as well as before the State Government till the State Government made a reference. Therefore, the Apex Court granted relief. He was fighting for his cause before the Management as well as before the State Government till the State Government made a reference. Therefore, the Apex Court granted relief. The Apex Court summarized the legal position in the following words: "21, In view of the above, law can be summarized that there is no prescribed time limit for the appropriate government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government 'at any time" refer the dispute to a Board or Court for enquiry, The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is 'a subjective satisfaction.. Normally, the Government cannot decline to make reference for latches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when, disputes relate to discharge of workman. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when, disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal" (emphasis supplied) 14 The latter part of the observations clearly show that the Apex Court has held that even though no limitation is prescribed for making a reference in terms of Section 10, even then it would be reasonable to expect that the disputes are referred as soon as possible. The Apex Court clearly held that if sufficient material is not put-forth for enormous delay it would certainly be fatal. After carefully going through the various judgments of the Apex Court, it is apparent that in some cases the Apex Court itself has held that since there is delay in seeking the reference the dispute had faded away or had got eclipsed due to lapse of time. Even in those cases where the Apex Court held that the reference was proper and the dispute still existed, it went on to hold that in cases where lapse of time had caused fading or eclipsing of the dispute and nobody had kept the dispute alive, it would be reasonable to conclude that the dispute ceases to exist. The Government is authorized to form the opinion whether a dispute exists or not. This clearly shows that the Government is not powerless and in case there is great delay and there is no explanation for the delay then the Government can refuse to make a reference on the ground that the claim is stale and therefore the industrial dispute no longer exists. An industrial dispute can fade away and cease to exist because of long delay where the workman has taken no steps to keep the dispute alive. However, if the workman or the Union has kept the dispute alive even if no action has been initiated it will not mean that the dispute ceases to exist. Whether, a dispute exists or not, or has faded or got eclipsed is a question of fact which has to be decided in the facts and circumstances of each case. I would answer the question in the aforesaid terms.